If you want to riff on the “Mona Lisa,” go ahead. Scratch a biro mustache on her. Give her a full beard if you like.

Don’t go drawing facial hair directly on the original, of course; that’s the physical property of the Louvre, and the museum’s conservators are likely to get very angry with you. But otherwise feel free to do your best or worst with Leonardo’s portrait of Lady Lisa.

You can copy it or adapt it; you can even rephotograph it and Photoshop your signature on to it if you want. The original is out of copyright, and has therefore become part of the global creative commons.

If you use a photograph of the “Mona Lisa” as a basis for your art experiments and then try to sell the results, though, be aware that that photographic image may be separately copyrighted material. (Photographers have rights, too.) And it should go without saying that if you make an exact oil-on-board copy and try to pass it off as Leonardo’s original, you may be charged with forgery. But otherwise knock yourself out. You are (almost, within carefully circumscribed limits) absolutely free.

. . . .

If you want to do something with Pablo Picasso’s “Les Demoiselles d’Avignon,” on the other hand, you are much less free. Newsweek hailed it as “the most influential work of art of the last 100 years” in 2007, when it was precisely 100 years old, but just because it was likely made before your grandparents were born doesn’t mean that it’s in the public domain yet.

In fact, that hoary old museum piece “Les Demoiselles” will be in copyright for several more decades, because copyright’s term has been extended considerably since Hogarth’s day, when it ran from 14 years from the date of first publication. Now the formula is life plus 70 — that is, until 70 years after the death of the author.

(The calculation is based on works providing for two generations of an artist’s family after his or her decease; I wish my grandparents’ pension plans had had similar provision.)

. . . .

Ownership of a physical work of art can be transferred in perpetuity (sold), but even if you had personally paid $100 million for a painting by an artist who either was still alive or had died within the past 69 years, you would not have the right to exploit the work’s image commercially; copyright would remain with the artist’s estate.

For your $100 million you get the painting with all its attendant aura, but that doesn’t mean you can stop the artist or the artist’s estate from making the same sum again by authorizing the use of its image on supermarket carrier bags. Every groceries-shopper could have a copy for small change.

. . . .

Copyright is a cornerstone of any democratic, progressive, free society that values and wishes to continue to enjoy the benefits of a knowledge-based economy.

“As the founders of this country were wise enough to see,” former register of copyrights Abraham Kaminstein told the United States Congress in the 1970s, “the most important elements of any civilization include its independent creators — its authors, composers and artists –who create as a matter of personal initiative and spontaneous expression rather than as a result of patronage or subsidy. A strong, practical copyright is the only assurance we have that this creative activity will continue.”

Most people agree that the world would be poorer without the works of Picasso, and in so far as his “creative activity” was supported by copyright, copyright must be a Good Thing.

But, you might ask, what is the “creative activity” of Picasso’s estate?

14 Comments to “The art of the steal: When does a copyright go too far?”

There’s another important thing to know when working with old paintings; for example: using one on a book cover. The creation and exhibition of a painting does not constitute publication. And thus you cannot always determine whether or not a painting is now in the public domain merely by identifying its date of creation or its date of exhibition. The book The Copyright Handbook by NOLO has extensive information about this issue. It is complex.

before, the very purpose of “property” and “property rights” was to better manage allocation of scarce resources. If there’s no scarce resource at all, then the whole concept of property no longer makes sense. If a resource is infinite, it no longer matters who owns it, because anyone can own it and it doesn’t diminish the ownership of anyone else. So, the entire rationale for “property rights” disappears.

Digital information. Any painting/graphic, song, movie, book, or other artistic work that can be converted into and consumed as a digital format can be copied infinite times without ever impinging on the ability of any one person to obtain their own copy. Physical matter must be shared by everybody but digital information, in the end, truly only costs as much as the electricity used to represent it.

Most people agree that the world would be poorer without the works of Picasso, and in so far as his “creative activity” was supported by copyright, copyright must be a Good Thing.

Picasso’s creative activity was supported by a 14-year copyright. It’s not particularly clear that he would have decided not to create his art if he wasn’t aware that copyright would be extended for an extra 80-plus years.

Copyright is a derivative of property rights.

Copyright is an artificial construct that was modeled off property rights. Perhaps that’s the same as saying it’s a derivative.

It seems to be extremely hard to have objective discussion about the value of copyright. Pro-copyright arguments tend to assume that everything created today is predicated on copyright existing. Anti-copyright arguments tend to bash large corporations owning copyright forever.

What’s missing from the discussion is: Here is the value that copyright brings to the table. Here is the value that avoiding copyright brings to the table. Where is the appropriate level of copyright?

It has become a frequent annoyance (to me, anyway): people who haven’t written books, created great art or composed memorable music, who just can’t stand that such works don’t get handed out to all and sundry as quickly as possible. They try to justify their viewpoints by seizing on the most flagrant examples, targeting big copyright owners like Disney or pointing to a Picasso.

No one seems to question that if you work your butt off and pay for a house, you can hand it down to your children and grandchildren. In perpetuity, essentially. Yet in an age when your grandchildren or even your children may very well be living 70 years after your death, they argue that those of us who create books, art, music and photos (and receive no minimum wage or benefits, for the most part) are being greedy to want to hand this stuff down.

Grrr. Snarl. (She rends things and, although aware that she ought to be doing something more productive, she screams into the void: Go write your own books and give away your own copyrights, you pompous cretin!).

We should gather up all of an author’s output when they die (every single copy) and build a pyre to send them off to their heaven. We can judge their lasting importance by the height of the pile and the brightness of the flames.

(I myself will be not even slightly singed, they’ll have to feed me to the crows instead.)

Many people mistakenly assumed that the US Constitution allows Artist to make money from their work but this is not true,. It was not originally intended for all creative content at all. That’s a later bastardization. Even so, it’s pretty clear that the purpose of copyright was to “promote the progress.” The mechanism was to create an artificial scarcity, via exclusion, that helped support one possible business model for content creators: selling copies of their works for a limited time. That’s it. The purpose: promote the progress. The mechanism: artificial scarcity. The problem is when people confuse those two and assume the “mechanism” is the purpose. Tragically, that’s what happens all too often.